(i) The audits will take place at the respondent's place of practice by a Board approved auditor every six months for a period of two years. The first audit is to commence within 14 days from the date of this order.

(ii) The auditor will select 10 recent patient records to review on each occasion.

(iii) On review of the records the auditor will determine whether the respondent's record-keeping meets the standards expected by the Guidelines on Dental Records that have been developed by the Dental Board of Australia in particular in respect of diagnosis, treatment planning, relevant dental and medical history, referrals to and from other practitioners, informed consent, details of advice provided, estimates or quotations of fees, and the Australian Dental Association Schedule of Dental Services Item Coding.

(iv) Within 14 days of completing each audit, the Board approved auditor will provide a report to the respondent and to the applicant as to compliance with the expectation that the respondent provide a report to the Board after each and every audit about the findings and how he intends to implement the findings in the report.

(v) The audit and reports referred to in the foregoing are required to be undertaken at the respondent's expense.

(vi) The above audit reports will be relied upon by the Board when determining whether the respondent has complied with the conditions of the order to be imposed.

(vii) The Board may communicate with the auditor referred to in the above conditions in relation to the respondent's compliance or lack of compliance with these conditions.

(viii) Should any audit reveal that the respondent has not been satisfactorily complying with the Board's Guidelines on Record Keeping, the Board may take immediate action pursuant to the provisions of Division 7 of the Act.

(ix) Should any audit reveal that the respondent has not been satisfactorily complying with the Board's Guidelines on Dental Records, that audit is to be repeated after the deficiencies identified have been satisfactorily addressed and such audit is not to count towards compliance with the conditions.

1. The respondent pay $5,000 towards the Board's legal costs of this proceeding within 28 days of the date of this order.

Rachel Ellyard instructed by Colin Biggers and Paisley

1. The respondent is a dentist and has a small practice in Bentleigh.
2. The regulation of dentists is governed by the Health Practitioner Regulation National Law (Victoria) Act 2009 ( the National Law).This Act requires dentists in Australia to register with the Dental Board of Australia, which is the applicant to this application.
3. The National Law also establishes the Australian Health Practitioner Regulation Agency which is the administrative body with the power to conduct investigations on behalf of the National Board.
4. The Australia Health Practitioner Regulation Agency conducted an investigation into Dr Zehtab-Jardid's registration in 2012, arising out of allegations of insufficient record keeping in his practice.
5. These allegations were notified to the Dental Board of Australia, and at its meeting of the 10th of July 2012, the Board considered those allegations and decided to refer them to a Performance and Professional Standards Panel pursuant to s 182(1) of the National Law.
6. On the 26th of November 2012, the Panel decided to refer those allegations to VCAT. This was done under s 190(b) (i) of the National Law. That section provides that the Panel must stop hearing a matter and refer the matter to VCAT if the Panel reasonably believes that the evidence demonstrates that the practitioner may have behaved in a way that constitutes professional misconduct.
7. It is through this process that this proceeding has been initiated before the Tribunal.

1. This is not the first occasion that the respondent has been the subject of disciplinary proceedings.
2. In 2010 he appeared before a differently constituted Panel to answer a charge of unprofessional conduct arising out of a patient complaint in respect of endodontic and orthodontic procedures. As we understand it, investigation of this allegation first identified the problem of inappropriate record keeping in the respondents practice.
3. On that earlier occasion, the Panel issued a reprimand to the respondent, ordered that the respondent undergo further training in respect of orthodontic and endodontic procedures, and also ordered further training and supervision in respect of his record keeping procedures.
4. This training took the form of three half days' training separate to the endodontic and orthodontic training instruction on record keeping procedures, and two further one-day audits of the records of his practice.
5. As we have said, it was the previous disciplinary proceeding which brought the respondent to the attention of the Board. Subsequent audits have uncovered a continued pattern of insufficient record keeping. It is the results of these audits which comprise the allegations before us.

1. It is not necessary to set out the allegations in detail. This is because they are admitted in a Notice of Agreed Statement of Facts and Findings filed in the Tribunal on the 16th of January 2014 and signed by both parties.
2. They comprise the following:

(a) There was no evidence of any information being given to patients regarding privacy legislation.

(b) His manual ink records were very difficult at times to decipher.

(c) In many cases odontograms did not exist or were not completed apart from recording the teeth involved in the presenting complaint. The findings seen in OPG x-rays were not recorded in the odontograms apart from those relating to the patient's complaint. Odontograms were further not updated following treatment given to patients.

(d) While Dr Zehtab-Jardid stated that he always updated medical histories, there was rarely any recording of these updates.

(e) The patient's presenting complaint was not fully detailed in any instance, and a certain or probable diagnosis was not recorded for each of his patients.

(f) A detailed treatment plan was not recorded in any instance nor was there evidence of advice being given to his referring doctor in the case of the Medicare EPC Benefit Scheme.

(g) There were no recorded details of patients being given an explanation of the advantages, disadvantages, risk, possible complications, alternatives, results of no treatment, etc such that true consent to treatment could be given.

(h) ADA codings were not written for any treatment.

(i) No records detailed the costs or probable number of appointments necessary for patients, and

(j) Dr Zehtab-Jardid consistently stated that he told the patient matters relating to proposed treatment but no record was found of any of these purported statements.

1. The Notice of Agreed Statement of Facts acknowledges that Dr Zehtab-Jardid underwent further training in October 2012 in the area of record keeping. At the time of that training, further examples of insufficient record keeping were uncovered. Those deficiencies were also set out in the Statement of Agreed Facts and were as follows:

(i) No record was kept for patients who did not attend appointments.

(ii) Updates of medical histories were not recorded routinely.

(iii) An odontogram was not filled out for every patient.

(iv) Periapical x-rays were stapled or sticky-taped to records and the findings of those x-rays were not recorded in the records.

(v) OPG x-ray findings were not recorded in the patient records.

(vi) The full details of presenting symptoms and treatment provided were not recorded.

(vii) For one patient there was no record of warnings provided regarding lip and tongue numbness prior to lower wisdom teeth extractions.

(viii) Patient records were too brief, partially illegible and failed to record the ADA Codes for treatment provided.

(ix) Dr Zehtab-Jardid was unable to produce any copies of referrals to specialists.

(x) The auditor commented -"The greatest deficiency found in the records audited was that in not one instance was there any record of the patient being advised of advantages, disadvantages, risks, possible complications, alternatives to the treatment proposed or results of no treatment, the number of visits involved and the probable longevity of the treatment."

1. In signing the Notice filed with the Tribunal, Dr Zehtab-Jardid acknowledged that he had engaged in professional misconduct within the meanings of s 5(a) and (b) of the Act.
2. This is a significant concession by the respondent, as the criteria required to establish misconduct are significantly more onerous than a finding of unprofessional conduct, and the offence of misconduct is graver than that of unprofessional conduct.

1. We heard submissions from the respondents counsel in mitigation of penalty.
2. The respondent is 58 years of age. He was born in Iran, but left that country in 1975 to complete a dentistry degree in the Philippines.
3. He graduated in 1983, but was unable to return to his home because of fear for his life, and ultimately entered Australia as a refugee in 1985.
4. He was registered as a dentist in NSW in 1990, and practised in that state before moving to Victoria in. He worked at the Royal Dental Hospital of Melbourne for 10 years, and then spent 2 years at a community health centre, before opening his own practice in Bentleigh in 1997. He has practised continually as a dentist in that location since that time.
5. He runs a busy general practice and employs two part time dentists.
6. Apart from the previous matter in 2010, which we understand is now the subject of civil litigation, the respondent has had no complaints of a professional nature against him by any patient since he commenced practice in 1990.
7. We were told that the respondent is presently facing two significant personal issues.
8. Firstly, his marriage has broken down, and the relationship between himself and his former wife is fraught. He has committed himself financially to support his wife and two children, and is in the midst of Family Court proceedings.
9. Secondly, because of an unwise investment in dental equipment, he has been defrauded of approximately $600,000.
10. This has left him under significant financial pressure, and he has been obliged to live with his elderly mother in order to make ends meet.
11. It was not suggested that either of these matters were the cause of the offending. They are rather general matters of mitigation and background which we take into account in assessing the financial penalty to be imposed in this case.
12. Indeed, the respondents counsel suggested that the record keeping offences arose out of the respondent's outdated approach to dentistry - a result of his focus on provision of the technical service of dentistry without proper regard to the modern requirements of accountability and accurate reporting of advice to patients .
13. He submitted that the respondent is taking positive steps to bring his practice up to date. As well as submitting to the orders suggested by the Board, he has independently engaged the services of a widely respected dentist to advise him on changes to be made to his office keeping arrangement, and has bought and is in the process of installing appropriate software which will automatically bring record keeping oversights to his attention.
14. His counsel also submitted that he was intensely embarrassed to be the subject of this disciplinary proceeding, and that his remorse was evidenced by his unequivocal acceptance of the characterisation of his actions as professional misconduct, rather than the less serious offence of unprofessional conduct.

1. The parties jointly submitted to this Tribunal that the penalties to be imposed by the Tribunal in respect of this professional misconduct should be as follows.

(1) That pursuant to s 196(2) (a) of the National Law the respondent be reprimanded.

(2) That pursuant to s 196(2) (c) of the National Law the respondent should pay a fine of $3,000 to the Board within 28 days of the date of the Tribunal order.

(3) That pursuant to s 196(2) (b) of the National Law a condition should be placed on the respondent's registration that he submit to regular audits of patient records which meet the following requirements.

(i) The audits will take place at the respondent's place of practice by a Board approved auditor every six months for a period of two years. This audit is to commence from the date of imposition of these conditions.

(ii) The auditor will select 10 recent patient records to review on each occasion.

(iii) On review of the records the auditor will determine whether the respondent's record-keeping meets the standards expected by the Guidelines on Dental Records that have been developed by the Dental Board of Australia in particular in respect of diagnosis, treatment planning, relevant dental and medical history, referrals to and from other practitioners, informed consent, details of advice provided, estimates or quotations of fees, and the Australian Dental Association Schedule of Dental Services Item Coding.

(iv) Within two weeks of completing each audit, the Board approved auditor will provide a report to the respondent and to the applicant as to compliance with the expectation that the respondent provide a report to the Board after each and every audit about the findings and how he intends to implement the findings in the report.

(v) The audit and reports referred to in the foregoing are required to be undertaken at the respondent's expense.

(vi) The above audit reports will be relied upon by the Board when determining whether the respondent has complied with the conditions of the order to be imposed.

(vii) The Board may communicate with the auditor referred to in the above conditions in relation to the respondent's compliance or lack of compliance with these conditions.

(viii) Should any audit reveal that the respondent has not been satisfactorily complying with the Board's Guidelines on Record Keeping, the Board may take immediate action pursuant to the provisions of Division 7 of the National Law.

(ix) Should any audit reveal that the respondent has not been satisfactorily complying with the Board's Guidelines on Dental Records, that audit is to be repeated after the deficiencies identified have been satisfactorily addressed and such audit is not to count towards compliance with the conditions.

1. (4) That the respondent pays $5,000 towards the Board's legal costs of this proceeding within 28 days of the date of the VCAT order.

1. Counsel for the Board commended these proposals as being an appropriate response to the gravity of the respondents offending. Counsel indicated that the material in the Boards possession confirmed those matters of mitigation put to us by defence counsel, and that the respondent was responding positively to the close monitoring of his practice which had already been put in place.
2. Counsel for the Respondent submitted that the proposals would address each of the sentencing criteria we are obliged to apply. It would address the issue of general deterrence by signalling to the dental profession that infractions of the record keeping requirements are viewed very seriously indeed.
3. It would address the issue of specific deterrence, that is, deterring the respondent from future offending, by the imposition of a reprimand, a significant sanction indeed for a professional person.
4. It would also address the issue of the protection of the community, and public confidence in the profession of dentistry by providing an effective means of educating the respondent in his professional duties. The proposed orders do not allow the respondent to take a purely passive stance. Rather, they require him to respond to audits, providing to the board a regular report as to how he intends to address issues of noncompliance pointed up in each audit report.
5. In addition, counsel for the respondent pointed out that the proposed orders allowed for the immediate taking of action by the Board if noncompliance was identified.

1. We declare ourselves satisfied that the respondent has committed an act or acts of professional misconduct as identified in the Statement of Agreed Facts and Findings.
2. Although there is no suggestion that any individual patient has complained about the deficiencies identified, or that any patient has been caused actual harm thereby, nevertheless this pattern of appalling record keeping has great potential for harm.
3. We note the concern of the auditor in October 2012 that he found not one instance of any record of a patient being advised of the advantages, disadvantages, risks, possible complications of treatment, nor of advice regarding alternatives to treatment, or the number of visits or longevity of the treatment. We share this concern. No dental practice can be allowed to operate in this way in the modern world. It is a dereliction of a dentists duty of care to his patient. That duty encompasses not only technical skill, but skill in advising and recording the provision of appropriate expert advice to patients as to the possible consequences of treatment options.
4. We agree that the sanctions proposed are realistic and appropriate mechanisms for meeting the aims of general and specific deterrence, and for protecting the community and the reputation of the profession of dentistry.
5. We have determined, as we announced at the hearing of this matter, to impose the sanctions set out in the Notice of Agreed Statement of Facts and Findings and joint submission on determination.
6. We also wish to record that at the time of announcing our intention to impose those sanctions we have warned the respondent in no uncertain terms that, having now received two reprimands and been the subject of detailed investigation by the board over an extended period of time, he may well find his registration to practise as a dentist in jeopardy if he is the subject of any further complaint. He has been put on unmistakeable notice of this prospect.
7. We also record that the Board has advised of its intention to withdraw the allegation against the respondent of failing to respond and failure to cooperate set out in paragraph 13 of the notice of allegation dated 4 July 2013. Accordingly, we record that we have made no order in respect of this allegation.